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Thiel vs Gawker: Why a Defensive Media is the Real Threat to Free Speech

In March this year, Terry Bollea (Hulk Hogan), was awarded $140 million in damages in an invasion of privacy lawsuit against Gawker Media.

Gawker Media is an online media company owned by Nick Denton, based in New York City and incorporated in the Cayman Islands. It is the parent company of several different blogs including the infamous pop-feminist rag Jezebel and the much maligned Valleywag and Kotaku.

Gawker Media has tormented both powerful and not so powerful people for some time now. In 2015, The Daily Beast reported that the online magazine belligerently hounded actor James Franco for years even going so far as to accuse him of being a “gay rapist”.

Less than a year ago, Gawker ran a bizarre expose about a thwarted tryst between an unknown business executive and a male escort. It turned out that the escort had attempted to blackmail the executive. When that failed, he went to Gawker, and Gawker ran the story.

In Hulk Hogan’s court case, details emerged of Gawker’s editor-in-chief Albert J Daulerio mocking a college girl who had begged the company’s editors to remove a video of her being sexually assaulted in a bathroom stall. A deposition of Daulerio was also shown at the trial. Daulerio gave the following testimony:

“Can you imagine a situation where a celebrity sex tape would not be newsworthy?” (asked Douglas E. Mirell, a lawyer).

“If they were a child,” Daulerio replied.

“Under what age?” asked Mirell.

“Four.”

***

It was also revealed last week that PayPal Founder and Venture Capitalist, Peter Thiel, was bank-rolling Hulk Hogan’s lawsuit against Gawker the entire time it was running. This was hitherto unknown, even to Nick Denton, who responded to the news by penning a desperate open letter to the billionaire begging him to stop.

Thiel has every reason to disdain the company – its subsidiary Valleywag invaded his own privacy in 2007. But revenge was not the primary reason why Thiel funded the lawsuit. In an interview with the New York Times, he said that he helped Terry Bollea (Hogan) so that it would serve as a deterrent to other rogue media companies:

It’s less about revenge and more specifically about deterrence…I saw Gawker pioneer a unique and incredibly damaging way of getting attention by bullying people even when there was no connection with the public interest.

When the news of Thiel’s involvement broke, Twitter erupted in celebration with #ThankYouPeter briefly trending. In contraposition with the public, however, was the reaction of the media. Never has the disconnect between journalists and ordinary readers been so starkly illustrated, with the same limp and homogenized arguments being published in The Washington Post, The New York Times, The Financial Times, The Guardian and even The New Yorker. Each masthead argued the same thing: that Gawker was distasteful – yes – but that a billionaire funding a lawsuit against a media company was “worrisome”, and that the funding of this lawsuit would set a “dangerous precedent”.

Rubbish.

Much of the commentary focuses on a hypothetical chill to free speech that the lawsuit might inflict. But this analysis omits a crucial fact. It was Gawker, not Hulk Hogan or Peter Thiel, which struck fear into the hearts and minds of people for years. It was Gawker staff who trawled social media for everyday targets to mock and ridicule. It was Gawker’s CEO Nick Denton who was aware that a trans woman committed suicide after being outed, but ordered his staff to continue outing anyway.

At Gawker’s peak, you could be a regular person, tweet something stupid, and your whole life could blow up. Just ask Justine Sacco, who described “crying her weight in tears” after a badly judged tweet was picked up and published by Valleywag, spearheading a particularly vicious episode of mob justice.

Freedom of speech is not something that belongs to multi-million dollar media companies with offshore accounts in the Cayman Islands. It should belong to everyone. It should have belonged to Justine Sacco.

And while it is certainly nice that columnists at Slate and The Guardian have suddenly discovered that free speech is an important thing, it might also behoove them to remember that free expression is not only threatened by legal actions or government censorship. Historically and traditionally, free speech is most often suppressed by social norms.

Freedom to make observations about the world and articulate them has always been stifled by oppressive conformity. Whether one is living in 17th Century Italy and fails to declare that the world is flat; or whether one lives in 19th Century Germany and says “God is dead,” there will always be things one cannot say.

Ideally, a free press works to expand these boundaries and gently break down taboos through the piecemeal discovery and exploration of truth. Gawker and friends, on the other hand, did the exact opposite. Denton built a business model out of punishing and policing people for not adhering to social norms. And he even invaded people’s private lives to do so.

***

The lengths to which some writers have gone to defend Gawker’s behaviour casts doubt of whether the industry is capable of recognising unethical or illegal actions in its own ranks.

Will Oremus at Slate wrote that Thiel’s (perfectly legal) funding of Hogan’s lawsuit was itself “proof” that Valleywag was needed. In the same article he wrote that the tactics of Gawker were not actually bullying because “they always saw themselves as punching up”.

In an appalling screed, Marina Hyde of The Guardian wrote that the outing of gay men was a matter of “ethical opinion,” and that Valleywag — while distasteful — provided “much needed irreverence”.

Read enough of these flaccid excuses for bullying from media types and one comes away feeling vaguely sick. The real threat to freedom of expression is not a lawsuit funded by Peter Thiel. It is a vampiric industry that is ready to suck the blood of the public in an effort to cope with its economic stresses.

The media’s response to the Thiel vs Gawker affair has been to make much of Thiel. But the paramount issue is the conduct of the media itself. Journalism fails as a profession when it cannot adequately police itself. Thiel vs Gawker demonstrates the blindness of the press to the unseemly excesses of those within their ranks. The public are disgusted by Gawker, as they were disgusted by The News of the World phone-hacking scandal of the mid 2000s.

Columnists may strike an imperious posture if they wish, and attack Silicon Valley out of resentment. But that won’t do anything to restore the integrity of their profession. If journalism fails to open up its own industry to the same kind of scrutiny that it demands of others, it will not be digital disruption which causes its demise. It will be its own hypocrisy.

 

Claire Lehmann is the editor of Quillette. Follow her on Twitter @clairlemon

24 Comments

  1. Bitfu says

    “Free speech is most often suppressed by social norms.”

    That’s a bit of an equivocation. There’s Free Speech in connection with the State, and there’s Free Speech in connection with Social Norms. The concern in Thiel vs Gawker is strictly State-Squashed Free Speech. The fact that Gawker happened to be a part of the Social Justice Tribe which has used Social Norms to squash Free Speech is irrelevant.

    If George Soros funded a multi-million dollar lawsuit to make it possible for a Progressive activist to potentially cripple a right-leaning website, like Ace of Spades or The Federalist. I would say there is an Issue here. An unresolved issue, perhaps, but an issue nonetheless. I think a lot of people were surprised that a billionaire could go Lawyer-Sugar-Daddy, and fund another person’s litigation against a media company. Effectively, this allows the billionaire to use the State/Court as a weapon by the proxy another Plaintiff.

    It just so happens that Gawker was in fact liable for a repugnant civil offense. But what if it wasn’t found liable? Then, the result would have been that Gawker was run through the legal-ringer, incurring significant (if not crippling) legal expenses at the hand of a vengeful billionaire. Would this be OK for you?

    Again, I don’t think the issue is clear-cut…and there’s a lot to say on both sides. But there is a legitimate concern.

    • Dickmojo007 says

      Thiel single-handedly brought gawker to justice. He’s like Batman, a vigilante billionaire protector of the public good.

    • jim nichols says

      Risk….there is always risk…. and there is always more risk. Sometimes there is justice, but there is always risk…..

    • I think when you sue someone for slander and lose, you have to pay for the legal costs of the person you sued. So if Gawker had not been liable Gawker wouldn’t have incurred legal expenses.

      • Robert says

        What you’re asking for is called the Loser Pays system, and it has some merit; it would definitely help suppress nuisance lawsuits. The problem is that it can also suppress access to the justice system for low-income or indigent people, who may not bother to bring a meritorious claim because they can’t afford the possibility of a loss.

        I think a hybrid system where obvious nuisance suits are more routinely punished by making the person bringing the suit pay would probably work better. Anti-SLAPP laws help in this regard, when they open up the ability to recover attorney fees.

    • If the case had gone the other way, Thiel would have been on the hook for their legal costs as well as the plaintiffs’. And Denton would have loved the publicity.

      Your argument is that only people with deep pockets should have access to the tort system. Nice attitude.

      We probably need better rules to keep cases that have no merit and are just harrassment out of the courts–in other words, tort reform. But that’s not what you are arguing.

      And if Ace or Federalist published the kind of stuff that Gawker and its ilk did, they would also deserve to get sued and who pays for it is not the issue. That’s just a red herring.

      You are either very confused or driving an agenda you don’t admit to.

      • Bitfu says

        Look, if you’re going to write a sniveling little close like “You are either very confused or driving an agenda you don’t admit to.”…then you gotta do better with your overall comment.

        You write: “If the case had gone the other way, Thiel would have been on the hook for their legal costs as well as the plaintiffs’.”

        How do you jump to the conclusion that in the US, the loser pays?
        http://www.nolo.com/legal-encyclopedia/attorney-fees-does-losing-side-30337.html

        Because this is a Florida case (I’m sure you knew that, right?)
        http://www.naplesnews.com/columnists/news/does-the-loser-pay-the-attorney-fees-ep-396172862-343503422.html

        Then you write: “We probably need better rules to keep cases that have no merit and are just harrassment out of the courts–in other words, tort reform. But that’s not what you are arguing.”

        Beyond the fact you don’t know how to spell Harassment, your point is laughably stupid. If you were able to understand that an analogy is not necessarily a red herring, then you would understand that envisioning a scenario where George Soros tries to stifle the Federalist because he doesn’t like the Federalist’s views on climate change is a reasonable possibility. Not only that, but it’s a reasonable possibility that would involve harassment (sorry…harrassment). And it is this very scenario that I believe may need reforming. But before we reform, we have to acknowledge that there is an issue–which is why I originally wrote that which you failed to comprehend.

        So…get it through you head: It is not a forgone conclusion that the Loser pays the other side’s attorney fees in the United States of America. Not only that, but each state has its own rules. Billionaires like Thiel and Soros are too smart not to forum shop. https://en.wikipedia.org/wiki/Forum_shopping

        The fact that Bollea v Gawker had merit, doesn’t mean that other cases without merit couldn’t proceed accordingly. So…as YOU wrote: “We probably need better rules to keep cases that have no merit and are just harrassment out of the courts–in other words, tort reform. But that’s not what you are arguing.”

        Actually, Marty–it is what I am arguing. You’re just too confused–or mired in an ideological agenda– to recognize it.

        • Judges can use an equitable remedy to require the losing side to pay attorneys’ fees if they believe it would be unfair not to do so. (In law, equity generally means “fairness,” and an equitable remedy is a fair solution that a judge develops because doing otherwise would lead to unfairness.) This type of equitable remedy — granting attorneys’ fees to the winning side — is often used when the losing side brought a lawsuit that was frivolous, in bad faith, or to oppress the defendant, and the defendant wins.

          In addition, once in a while a judge will grant attorneys’ fees in cases of extreme attorney misconduct, to warn the offending attorney.

      • Bitfu says

        Look, if you’re going to write a sniveling little close like “You are either very confused or driving an agenda you don’t admit to.”…then you gotta do better with your overall comment.

        You write: “If the case had gone the other way, Thiel would have been on the hook for their legal costs as well as the plaintiffs’.”

        How do you jump to the conclusion that in the US, the loser pays?
        nolo.com/legal-encyclopedia/attorney-fees-does-losing-side-30337.html

        Because this is a Florida case (I’m sure you knew that, right?)
        naplesnews.com/columnists/news/does-the-loser-pay-the-attorney-fees-ep-396172862-343503422.html

        Then you write: “We probably need better rules to keep cases that have no merit and are just harrassment out of the courts–in other words, tort reform. But that’s not what you are arguing.”

        Beyond the fact you don’t know how to spell Harassment, your point is laughably stupid. If you were able to understand that an analogy is not necessarily a red herring, then you would understand that envisioning a scenario where George Soros tries to stifle the Federalist because he doesn’t like the Federalist’s views on climate change is a reasonable possibility. Not only that, but it’s a reasonable possibility that would involve harassment (sorry…harrassment). And it is this very scenario that I believe may need reforming. But before we reform, we have to acknowledge that there is an issue–which is why I originally wrote that which you failed to comprehend.

        So…get it through you head: It is not a forgone conclusion that the Loser pays the other side’s attorney fees in the United States of America. Not only that, but each state has its own rules. Billionaires like Thiel and Soros are too smart not to forum shop. en.wikipedia.org/wiki/Forum_shopping

        The fact that Bollea v Gawker had merit, doesn’t mean that other cases without merit couldn’t proceed accordingly. So…as YOU wrote: “We probably need better rules to keep cases that have no merit and are just harrassment out of the courts–in other words, tort reform. But that’s not what you are arguing.”

        Actually, Marty–it is what I am arguing. You’re just too confused–or mired in an ideological agenda– to recognize it.

        • Their is always a chance for someone to use the laws for harassment. In almost every kind of crime, both civil and criminal. This will always be a problem with our system. And the finding of “Responsible/Not Responsible”, “Guilty/Not Guilty” will always be an issue as well. Just because a case is found in favour of the accused does not mean that the case was frivolous; it just means that the case was found to not meet the standards required to rule against the accused. Generally cases only get this far if there IS something to the case – prior to the case getting to a final decision, it’s not that difficult to get truly frivolous cases thrown out. Sometimes even with thrown out and not allowed to come back at all.

          So no, cases that are without merit can’t simply proceed accordingly, no matter how much money gets flung at it. Cases with a lower degree of merit MAY proceed accordingly due to the accuser being able to afford to keep pushing it, but if the case has no merit it doesn’t matter how much money is thrown at it – it’s going to be tossed out. And if the case is found to have so little merit as to be considered harassment, the accused will have a very good chance of recouping the cost of their legal fee’s – again, depending on how much merit the original case was deemed to have. It’s not automatic, and it might take years (decades) for the case to move through the system, but it’s not a even unlikely in many cases.

          So an easy answer to the “crippling legal fee’s” complaint is… don’t write stuff that gives accusers any sort of merit. Make sure what you’re publishing is easily defensible in a court of law right from the beginning, so that judges are able to dismiss the case before it goes very far. If you give your enemies some rope, they might be able to hang you with it – so don’t give them that rope. Gawker kept on giving Hogan and Thiel more and more rope, they gave them a noose when they refused to take down the sex tape after a Judge’s order, they gave them a 20ft platform with a trapdoor in it during the trial (that quip about sex tapes only being against Gawker standards if they were 4 or younger – obviously a joke, but you don’t make that joke at a trial! (at least I hope it was a joke.)) and it was all used to hang Gawker. Gawker did it all to themselves – every last bit was Gawker’s fault

          (and for the record, it would be nice if some “Progressive” Billionaires started looking seriously at Breitbart, The Federalist, Fox News, etc. for this sort of action, and if they found cases with merit, started to push back against them; the media in general is far too unaccountable right now, and get away with far too much poisoning of the public discourse in the pursuit of viewers, clicks and subscribers.)

          There is no slippery slope here – the legal system is quite capable of dealing with this sort of situation. An argument can be made that it can be reformed and made BETTER at dealing with frivolous lawsuits (which I would agree with; I think I’d start with having lawyers sanctioned personally and as law firms if a judge deems a case brought by them to be frivolous. As in, Joe Laywer gets in trouble AND James Partner gets in trouble, even if James had no direct input into the frivolous lawsuit, and after a certain number of sanctions, the licence to practise law is revoked. With the potential for entire firms having their licenses revoked even if the individual lawyers in the firm did nothing wrong personally; if the Firm is pushing THAT many frivolous lawsuits… get the hell out.), but as it stands right now it’s quite good at dealing with them. You aren’t going to have George Soros or Sheldon Adelson or the Koch Brothers or (insert billionaire with political leanings here) destroying newspapers and news websites with frivolous cases. It hasn’t happened yet and it isn’t going to happen in the future because, as I said, the legal system is quite good at dealing with them already.

          What it is NOT good at dealing with is people without the financial resources to pay for the kinds of lawyers needed to get the justice they deserve.

          THAT is the problem here that Thiel’s actions have quite sharply shown into focus. Gawker could publish that “Tono Makt is a (evil repugnant sexual deviant criminal)!” and I would have no personal recourse against it because I can’t afford the kind of legal team it would take to take on Gawker. Most people in the world – including most of the rich and famous celebrities in Hollywood – also can’t afford to take on Gawker like that. We may snicker at the idea that a movie star making $20 million a movie can’t afford to pay for a $10 million dollar defense, but due to a variety of factors most simply can’t. Most – like James Franco – just ignore it, which has the downside of people wondering if he’s ignoring it because he’s guilty of what Gawker was accusing him of when really, he probably just couldn’t afford the costs of a legal team and didn’t want to put himself through a public trial to prove that he wasn’t the criminal Gawker accused him of being.

          Thiel has shown beyond a shadow of a doubt that if you want true Justice in America (and to a lesser extent, the rest of the world) you need to have a hell of a lot of money. Justice only works for the wealthy – so it takes the wealthy to extract justice. And until we have a Justice system that makes it likely that I will get the same amount of justice as a billionaire, I’m all for letting Billionaires pay the way to justice for other people. It’s not perfect and there are serious problems with it, but it’s better than what we have now.

  2. The media here might actually threaten free speech.

    IF free speech means allowing Gawker to post bathroom harassment and outing suicidal trans persons, some people might not want free speech any more

    The ONLY way to defend principles is not to stretch them ad absurdum

  3. Unless this piece was meant as an exercise in irony, shouldn’t any discussion of the right to privacy and its new, unlikely champion include at least a passing mention of Thiel’s Palantir? Or are we interested only in defending the kind of privacy that celebrities and the rich seem to crave, while the rest of us can be monitored and spied on?

    • Ad hominem digging into anything Thiel seems thuggish and distract from the discussion. You can always go and attack NYT on something and so on an infinitum.

    • BTW, the discussion is not about privacy. It is about illegal slandering of the innocent. It is about thuggish behavior.

      Privacy and big data are important topics, as well as terrorism and many others. But this is not what Gawker is accused of

  4. TBlakely says

    The real threat to the media is the media themselves. Most are ignorant, ideology driven twerps with serious self-esteem issues. They put out a crappy product that is designed to deliberately deceive. Honesty and respect for their customers is the last thing on their mind so it should come as no surprise that respect for the media is at an all time low.

    Trump is the result of media malfeasance that has been going on for decades.

  5. Jason Arsenault says

    Urgh. I hate it when somebody writes a wonderful article, but inserts one little erroneous factoid that triggers my OCD, and makes me feel compelled to correct it.

    Nobody in 17th Century Italy thought that the world was flat. Most scholars in Italy since 330 BC knew the earth was spherical. In fact the Western scientific establishment knew the circumference of the planet since Eratosthenes in 240 BC.
    What was probably the intended analogy here is geocentrism, not the flat earth myth.

  6. astro says

    Gawker engaged in horrible behavior to bully others in the name of journalism. It was cynically based on the idea that its victims would not have the wherewithal to fight back, that there would not be consequences. They got taken to the cleaner’s in the Hogan lawsuit because of what they did and what a jury reasonably concluded. Each case is based upon its own facts. There certainly can be and are cases where the legal system is misused to punish political dissent, where well-funded, interminable lawsuits are used as a weapon to attack freedom of the press. Those cases deserve criticism. What happened to Gawker (also known as karma) does not.

  7. Okie dokie! A cyber-culture tempest in a virtual teapot. That’s about as far removed from reality as I can imagine. Now, on to ‘tumblr-feminism’ …

  8. The Guardian loves free speech so much there is a website dedicated to showing deleted comments (http://46.101.255.81/) and an entire alternate media website formed by a group of people who had gotten sufficiently outraged by their unceasing censorship (https://off-guardian.org/category/guardian-watch/).

    So far The Guardian is concerned, “Comment is Free” but for some (e.g. Gawker) comment is freer than for others (e.g. Tim Hunt, against whom, incidentally, it led the social justice witchhunt for a joke presented out of context). That said, The Guardian has had a lot of financial troubles in recent years, so with any luck it will soon go the way of Gawker.

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